To Patent or Not To Patent That Is the Question

A few months ago we took the decision not to patent one of the features of our technology.  We were concerned about the cost of doing so and the nature of software patents in general.  We haven't launched that particular feature set yet so the window isn't, in theory, closed.

Over the last few weeks we've had cause to reconsider this due to the current crop of Patent insanity, which has led me to start thinking along, if you can't beat 'em, join them 'em lines.

I am extremely concerned about what I'm seeing in terms of what is being granted as patents at the moment because I think it's calling into question what a software patent is and actually should be.   There's two areas here.  There's the stuff that Apple and Nokia are fighting over, which involves quite a lot of hard arsed technical radio and phone stuff that, frankly, Apple are screwed over.  If Qualcomm, a company whose legal department is actually a profitable P&L, couldn't beat Nokia at this game, I suspect that Apple might find themselves feeling like Imperial Japan post-Pearl Harbour.

The second area is Apple's next counter punch which is the bucket of infringements they've slapped HTC with.  This is the area, along with Facebook's "news feed" patent that leave me feeling that things have got silly.  

Firstly, let me caveat the rest of this comment with the issue that I'm not a lawyer and nor do I play one on TV.  This is just my opinion based on the last decade spent in the mobile industry and dealing directly with IP related issues with some of the players.  

A lot of the items that Apple has hit HTC with are actually features of software that HTC have licensed.  I'm not sure about Google's license, I've not read it closely enough.  However, I have read the WinMo license and there's a fair degree of protection against patent infringement in there.  Apple must be aware of this so HTC is a proxy in a war with MS and Google.  While most companies might find this uncomfortable, especially small ones, I think Apple is underestimating HTC.  They're a self made Taiwanese OEM - the first of the ODMs to really make a transition to OEMhood.  They're also from a nation that's spent 60 years facing off against a nuclear capable superpower.  HTC are a not exactly a push over to deal with - believe me, you should try selling to them.

So, have HTC infringed anything by using software that's been licensed to them?  And do UI features or presentation issues (like slide/gesture to unlock) represent an actual invention?

Which brings me back to the News Feed and a patent that scares the hell out of me - is this actually something you can defend?

Anyway - I've slowly been coming around to deciding that yes, we probably should patent the next feature we've been working on because we actually think it's novel and new.  Of course, should Apple/Nokia/MS/Qualcomm/Facebook or WHOEVER decide that its something they already did or want to do, we're probably screwed anyway...

And that kind of impact on business and innovation is exactly what I thought patents were invented to prevent.